Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Talks

April 8, Culver City "The Big 7 EmploymentTrouble Spots" Click here for more information.

 

July 17, West Covina "Critical Human Resources Issues for Business Owners" Click here for more information. 

Is Your Criminal Background Policy OK?

The recently announced class action filed by the EEOC against Dollar General highlights the importance for employers of making sure that they don't act too "automatically" in rejecting applicants or terminating current employees based on criminal convictions.

 

The EEOC alleged that the retail chain's policy of conditioning job offers on criminal background checks had a disparate impact on African-American applicants and employees. According to the EEOC's complaint, Dollar General, which considered convictions for the past 10 years, revoked an offer of employment after a woman disclosed that she had a six-year-old conviction for possession of a controlled substance. In addition, an employee was allegedly discharged after her background check revealed a felony conviction, even though she allegedly informed her store manager that the report was in error.

 

The EEOC Enforcement Guidance explains that African-American and Hispanic men are convicted of crimes more frequently than men in other racial or ethnic groups, or women of any race or ethnic background. Therefore, an employer may be liable for violating Title VII even if its policy requires criminal background checks of all applicants without regard to race or sex. If the effect of such a neutral policy is to exclude members of certain protected groups, and if the employer cannot make a showing that the policy or practice is job-related and consistent with business necessity, then the employer could be liable for discrimination under a disparate impact theory.

 

According to the EEOC, criminal background policies should take into account the following:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct, or completion of the sentence; and
• The nature of the position held or applied for.

The EEOC recommends that employers make individualized assessments of criminal background information, instead of blanket exclusions for certain convictions. The following factors are relevant to an individualized assessment:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses;
• The person's age at the time of conviction or release from prison;
• Evidence that the person performed the same type of work after the conviction without any known incidents of criminal conduct;
• Employment history before and after the offense or conduct;
• Rehabilitation efforts; and
• References regarding fitness for the position.

Note: Before implementing a criminal background check policy, employers should carefully review the EEOC's Enforcement Guidance and may want to seek expert advice to ensure that the policy will not unwittingly create Title VII liability.

 

Illini Precast Agrees to Consent Decree in Sex Discrimination Case

A Federal District Judge has entered a consent decree resolving a sex hiring lawsuit brought by the EEOC. The EEOC had charged that Illini Precast, a manufacturer of prefabricated concrete construction panels, failed to engage any female temporary laborers at its Marseilles, Ill., facility.  The company is involved primarily in providing prefabricated components for parking structures.  

 

Based upon the findings of an EEOC administrative investigation the lawsuit claimed that in October 2008, a qualified woman applied for a general laborer position, but was denied employment due to her gender.  In its answer, Illini claimed that it was not an "employer" as defined by the civil rights statutes because it had fewer than 15 employees and that it was not responsible for the placement of laborers at its facility because it had contracted with a staffing agency.

 

EEOC guidance, and relevant case law, holds that temporary workers may be counted when determining if a company has enough employees to come under the provisions of the civil rights laws and that companies can be held responsible for the discriminatory hiring practices of the temporary agencies on which they rely.

 

According to the EEOC, "Employers are mistaken if they think they can 'contract away' their obligations under Title VII. Temporary or staffing agencies are acting as their agents in providing them with workers.  If the staffing agency is sending them only employees of one sex or one race, this should set off alarm bells.  Employers should realize that this is likely a problem that they have to fix."

 

Under the terms of the decree, Illini will pay $27,682 to the applicant.  The applicant had previously received $60,000 as part of a conciliation agreement with the staffing agency that placed workers at Illini.  Among other relief provided under the decree, within 60 days Illini will enter into a relationship with a local high school or vocational training program in order to encourage women to apply for work through staffing agencies used by Illini.  Illini will also have to notify its staffing agencies that it is an equal opportunity employer and ensure that any advertisements also notify applicants that it is an equal opportunity employer.

 

Factoids

• Only about 20% of people eligible to participate in a Flexible Spending Account (FSA) actually participate
• People exposed to uncivil behavior were 33% less creative and 4 times less helpful

2012 EEOC harassment and discrimination settlements

• $365 million
• 99,412 cases filed
• 66% of all employees are not aware of their company’s harassment and discrimination policies

Quotes

“Prediction is very difficult, especially when it’s about the future.”

~Niels Bohr~